Thomas v. California Attorney General

Filing 5

ORDER TO SHOW CAUSE RE. CUSTODY (Illston, Susan) (Filed on 12/17/2012) (Additional attachment(s) added on 12/17/2012: # 1 Certificate of Service) (tlS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TOMMY EUGENE THOMAS,

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United States District Court
For the Northern District of California

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No. C 12-6012 SI (pr)

Petitioner,

ORDER TO SHOW CAUSE RE.
CUSTODY

v.
CALIFORNIA ATTORNEY
GENERAL,
Respondent.
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Tommy Eugene Thomas has filed a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 to challenge his 2009 conviction in Monterey County Superior Court for assault

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with a deadly weapon. According to his petition, the charge was reduced to a misdemeanor, for

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which he was sentenced to 240 days in jail on January 30, 2009. Docket # 1, p. 2. The return

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address he uses does not appear to be a prison or jail address. He alleges that he is in custody

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serving the term, id., but does not state the nature of that custody.

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Thomas does not appear to satisfy the requirement that he be "in custody" on the

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conviction he is attempting to challenge. The federal writ of habeas corpus is available only to

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persons “in custody” at the time the petition is filed. 28 U.S.C. §§ 2241(c), 2254(a); see Carafas

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v. LaVallee, 391 U.S. 234, 238 (1968). This requirement is jurisdictional. Carafas, 391 U.S.

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at 238. It is not necessary that a prisoner be physically confined to meet the custody

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requirement. Maleng v. Cook, 490 U.S. 488, 491 (1989). In general, custody is satisfied where

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the sentence imposed “significantly restrain[s] petitioner's liberty to do those things which in this

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country free men are entitled to do." Jones v. Cunningham, 371 U.S. 236, 243 (1963). For

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example, a petitioner on parole, see id. at 241-43, or on probation, see Chaker v. Crogan, 428

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F.3d 1215, 1219 (9th Cir. 2005), at the time of filing is considered to be in custody. "It is well-

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established that 'once the sentence imposed for a conviction has completely expired, the

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collateral consequences of the conviction are not themselves sufficient to render an individual

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"in custody" for the purposes of a habeas attack upon it.'" Resendiz v. Kovensky, 416 F.3d 952,

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956 (9th Cir. 2005) (italics in source); see, e.g., id. at 958-59 (California law which requires

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convicted narcotics offenders to register with state authorities does not constitute severe restraint

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on physical liberty sufficient to constitute custody); Henry v. Lungren, 164 F.3d 1240, 1241-42

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(9th Cir. 1999) (California law which requires convicted sex offenders to annually register with

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state authorities does not constitute severe, immediate restraint on physical liberty sufficient to

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constitute custody); Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (revocation of medical

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license based upon petitioner's conviction does not satisfy custody requirement for petitioner

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who filed petition after unconditional release from probationary period); see also Ginsberg v.

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Abrams, 702 F.2d 48, 49 (2d. Cir. 1983) (where sentence of unconditional discharge entailed

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neither imprisonment, fine, nor probation supervision, judge's removal from bench, loss of right

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to practice law and disqualification from licensure as agent insufficient to constitute custody);

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Harvey v. South Dakota, 526 F.2d 840, 841 (8th Cir. 1975) (inability to pursue certain

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professions, to possess firearms, and status of recidivist if another crime committed not custody).

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The petition suggests that Thomas does not meet the custody requirement on the conviction he

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charges. Although he checked the box on the form indicating he is in custody, he also stated that

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the sentence of less than a year was imposed back in 2009, and should have been completed long

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before the filing of this action.

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/ /

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/ /

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Accordingly, Thomas is hereby ordered to show cause why his petition should not be

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dismissed for lack of custody. Thomas must file a written response to this order to show cause

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no later than January 11, 2013, and may label it a "response to order to show cause." The

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response must be no longer than eight pages in length, and should explain how he meets the

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custody requirement. Failure to file the response by the deadline will result in the dismissal of

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this action.

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IT IS SO ORDERED.

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DATED: December 17, 2012
SUSAN ILLSTON
United States District Judge

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